[Federal Register: January 24, 2011 (Volume 76, Number 15)]
[Rules and Regulations]               
[Page 4188-4191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja11-16]                         

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 9, 12, and 52

[FAC 2005-49; FAR Case 2010-016; Docket 2010-0016, Sequence 1]
RIN 9000-AL94

 
Federal Acquisition Regulation; Public Access to the Federal 
Awardee Performance and Integrity Information System

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule.

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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement section 3010 of 
Supplemental Appropriations Act, 2010. Section 3010 requires that the 
information in the Federal Awardee Performance and Integrity 
Information System (FAPIIS), excluding past performance reviews, shall 
be made publicly available. This interim rule notifies contractors of 
this new statutory requirement for public access to FAPIIS and creates 
a new FAR clause to support the posting of information in FAPIIS 
consistent with section 3010. All information posted in FAPIIS on or 
after April 15, 2011, except for past performance reviews, will be 
publicly available.

DATES: Effective Date: January 24, 2011.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before March 25, 2011 to be considered 
in the formulation of a final rule.
    Applicability Date: This rule applies to solicitations issued on or 
after January 24, 2011. Contracting officers are encouraged, to the 
extent feasible, to amend existing solicitations in accordance with FAR 
1.108(d), in order to include the clause at FAR 52.209-9 in contracts 
to be awarded on or after January 24, 2011. Prior to April 15, 2011, 
contracting officers shall bilaterally modify existing contracts, 
including indefinite-delivery indefinite-quantity contracts, that 
contain the clause 52.209-8, Updates of Information Regarding 
Responsibility Matters, if a six-month update will be due on or after 
April 15, 2011. The modification shall replace the clause 52.209-8 with 
a new clause 52.209-9, Updates of Publicly Available Information 
Regarding Responsibility Matters, Alternate I (JAN 2011). If the 
contracting officer is unable to negotiate this modification prior to 
April 15, 2011, the contracting officer shall obtain approval at least 
one level above the contracting officer to negotiate an alternate 
resolution.

ADDRESSES: Submit comments identified by FAC 2005-49, FAR Case 2010-
016, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2010-016'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds

[[Page 4189]]

with ``FAR Case 2010-016.'' Follow the instructions provided at the 
``Submit a Comment'' screen. Please include your name, company name (if 
any), and ``FAR Case 2010-016'' on your attached document.
     Fax: (202) 501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th 
Floor, Washington, DC 20417.
    Instructions: Please submit comments only and cite FAC 2005-49, FAR 
Case 2010-016, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst, 
at (202) 501-0650 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at (202) 501-4755. Please cite FAC 2005-49, FAR Case 2010-
016.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a final rule in the Federal Register 
at 75 FR 14059 on March 23, 2010, FAR Case 2008-027, Federal Awardee 
Performance and Integrity Information System, to implement the 
requirements of FAPIIS. This rule became effective on April 22, 2010. 
That rulemaking and the associated launch of FAPIIS in April 2010 are 
part of an ongoing effort by the Administration to enhance the 
Government's ability to evaluate the business ethics and quality of 
prospective contractors competing for Federal contracts. That 
rulemaking also addresses requirements set forth in section 872 of the 
Clean Contracting Act of 2008 (subtitle G of title VIII of Pub. L. 110-
417) (41 U.S.C. 417b) for a system containing specific information on 
the integrity and performance of covered Federal agency contractors. 
Additional information on FAR Case 2008-027 may be found in the Federal 
Register at 75 FR 14059, March 23, 2010.
    With respect to the availability of information in FAPIIS, section 
872(e)(1) states, in pertinent part, that the Administrator of General 
Services ``shall ensure that the information in the database is 
available to appropriate acquisition officials of Federal agencies and 
to such other government officials as the Administrator determines 
appropriate.'' Section 3010 of the Supplemental Appropriations Act, 
2010 (Pub. L. 111-212), enacted July 29, 2010, modifies section 
872(e)(1) to require that the Administrator of General Services post 
all FAPIIS information, excluding past performance reviews, on a 
publicly available Web site. FAPIIS will now become the publicly 
available Web site.
    To comply with section 3010, this preamble contains instructions to 
contracting officers on modifying existing contracts to incorporate the 
new clause. To begin the transition process and lessen the number of 
contracts that will require modification when the interim rule is 
published, the Department of Defense's Director of Defense Procurement 
and Acquisition Policy issued a Class Deviation for the Department on 
October 12, 2010 (see http://www.acq.osd.mil/dpap/policy/policyvault/
USA005830-10-DPAP.pdf). On October 14, 2010, the Civilian Agency 
Acquisition Council (CAAC) Chair issued a Consultation for Class 
Deviation letter recommending that civilian agencies authorize a class 
deviation (see https://www.acquisition.gov/comp/caac/caacletters/CAAC-
Letter-2011-01.pdf). Both the DoD deviation and the CAAC letter provide 
a contract clause that complies with section 3010 and was expected to 
be included in the interim rule. Agencies were encouraged to take 
advantage of the deviations until this FAPIIS interim rule became 
effective. To implement section 3010, the following steps have been, or 
are being taken:
    1. Enhanced FAPIIS functionality. The Managers of the FAPIIS 
system, in consultation with the Civilian Agency Acquisition Council 
and the Defense Acquisition Regulations Council (the Councils), are 
making changes to the FAPIIS architecture to support the transparency 
requirements of section 3010. The current architecture, consistent with 
the rule effective on April 22, 2010, provides a one-stop information 
system to help acquisition officials make informed decisions about an 
offeror's business integrity, but lacks the functionality to make 
information immediately available to the public as it is posted in the 
system. On and after April 15, 2011, when system changes are completed, 
information posted to FAPIIS by offerors, contractors, and Government 
personnel will be publicly available in accordance with section 3010.
    2. New FAR clause. The Councils have developed a new FAR clause 
52.209-9, Updates of Publicly Available Information Regarding 
Responsibility Matters, to replace the current FAR clause 52.209-8, 
Updates of Information Regarding Responsibility Matters. The current 
clause states that only Government personnel and authorized users 
performing business on behalf of the Government will have access to a 
contractor's record in the FAPIIS system. The new clause does not 
include this statement but instead provides notice to contractors that 
all information posted in FAPIIS on or after April 15, 2011, except 
past performance reviews, will be publicly available. The new clause 
also states that requests to review the information posted in FAPIIS 
before April 15, 2011, will be subject to the Freedom of Information 
Act (FOIA) process.
    The new FAR clause will be implemented in the following manner:
    a. New contracts. On or after the effective date of this interim 
rule, contracting officers will be required to insert the FAR clause 
52.209-9, in accordance with the prescription at FAR 9.104-7(c), in 
solicitations issued on or after the date of this rule and resultant 
contracts. As explained immediately above in paragraph 2. of this 
Background, information posted under the new clause on or after April 
15, 2011, except for past performance reviews, will be released to the 
public. Information posted before April 15, 2011, will continue to be 
handled under FOIA. However, the clause at FAR 52.209-9, Alternate I, 
requires this information to be reposted if a six-month update will be 
due on or after April 15, 2011. The reposted information will be made 
available to the public.
    b. Existing contracts. Prior to April 15, 2011, contracting 
officers will be required to bilaterally modify existing contracts 
(including indefinite-delivery indefinite-quantity contracts) that 
contain the FAR clause 52.209-8, if a six-month update will be due on 
or after April 15, 2011. The modification shall replace the FAR clause 
52.209-8 with the new FAR clause 52.209-9. If the contracting officer 
is unable to negotiate this modification prior to April 15, 2011, the 
contracting officer will be required to obtain approval at least one 
level above the contracting officer to negotiate an alternate 
resolution.
    3. FAPIIS and CCR Notice. A notice has been posted on the FAPIIS 
Web site, available at http://www.cpars.csd.disa.mil/FAPIISmain.htm, as 
well as on the Central Contractor Registration at http://www.ccr.gov 
through which offerors submit certain information to FAPIIS to alert 
offerors, contractors, and Government officials to the requirements of 
section 3010 and the actions they need to take in

[[Page 4190]]

implementing this law. For contracting officers, this includes taking 
appropriate steps to ensure that they do not post information in the 
system on or after April 15, 2011, that would create a harm protected 
by a disclosure exemption under FOIA. For example, heightened attention 
might need to be given to whether documentation supporting a non-
responsibility determination or termination for default decision should 
be redacted before the determination or decision is posted.
    The Federal Acquisition Regulatory Council (OFPP, DoD, GSA, and 
NASA) are continuing to consider the need for additional regulatory or 
other guidance to address the implementation of section 3010 and 
welcome public comment on this issue.
    Finally, this rule makes several conforming changes and technical 
corrections:
     FAR 9.104-7 and 12.301--Modifies the clause prescriptions 
to prescribe the new clause.
     FAR 52.209-7--Relocates the definition of ``Principal'', 
in alphabetical order, in paragraph (a) of the clause.

II. Executive Order 12866

    This is a significant regulatory action and, therefore, was subject 
to review under Section 6(b) of Executive Order 12866, Regulatory 
Planning and Review, dated September 30, 1993. This rule is not a major 
rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this interim rule to have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq., because this rule just notifies the contractors that the public 
will have access to the database. The rule does not impose any new 
burdens on small entities but just makes editorial changes to 52.209-7 
and transfers the information collection requirement of 52.209-8 to new 
clause 52.209-9.
    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. DoD, GSA, and NASA invite comments from small business 
concerns and other interested parties on the expected impact of this 
rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAC 2005-49, FAR Case 
2010-016), in correspondence.

IV. Paperwork Reduction Act

    The interim rule does not contain any new information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). The 
existing burden hours for the information collection requirements that 
will now be in 52.209-7 and 52.209-9 were initially approved under OMB 
clearance 9000-0174 with regard to FAR Case 2008-027, with a reference 
only to 52.209-7, because initially all burdens were included in that 
provision. However, in the final rule under FAR Case 2008-027, the 
ongoing portion of the reporting to FAPIIS was separated out of the FAR 
provision 52.209-7 and incorporated into FAR clause 52.209-8. This 
transfer did not change the number of approved hours. In this case, the 
burden for 52.209-8 is transferred to 52.209-9, again without any 
change to the burden hours initially approved under OMB clearance 9000-
0174.

V. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the rule implements section 3010 of the 
Supplemental Appropriations Act, 2010 (Pub. L. 111-212), which was 
signed on July 29, 2010, and was effective upon enactment. However, 
pursuant to 41 U.S.C. 418b and FAR 1.501-3(b), DoD, GSA, and NASA will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

List of Subjects in 48 CFR Parts 1, 9, 12, and 52

    Government procurement.

    Dated: January 19, 2011.
Michael O. Jackson,
Acting Director, Office of Governmentwide Acquisition Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 9, 12, and 52 
as set forth below:

0
1. The authority citation for 48 CFR parts 1, 9, 12, and 52 continues 
to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

0
2. Amend section 1.106, in the table following the introductory text, 
by adding in numerical sequence, FAR segment ``52.209-7'' and its 
corresponding OMB Control Number ``9000-0174'', and FAR segment 
``52.209-9'' and its corresponding OMB Control Number ``9000-0174''.

PART 9--CONTRACTOR QUALIFICATIONS

0
3. Amend section 9.104-7 by revising paragraph (c) to read as follows:


9.104-7  Solicitation provisions and contract clauses.

* * * * *
    (c)(1) The contracting officer shall insert the clause at 52.209-9, 
Updates of Publicly Available Information Regarding Responsibility 
Matters--
    (i) In solicitations where the resultant contract value is expected 
to exceed $500,000; and
    (ii) In contracts in which the offeror checked ``has'' in paragraph 
(b) of the provision 52.209-7.
    (2) For solicitations issued prior to April 15, 2011, and resultant 
contracts, use the clause with its Alternate I.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
4. Amend section 12.301 by revising paragraph (d)(4) to read as 
follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (d) * * *
    (4)(i) Insert the clause at 52.209-9, Updates of Publicly Available 
Information Regarding Responsibility Matters, as prescribed in 9.104-
7(c).
    (ii) Use the clause with its Alternate I as prescribed in 9.104-
7(c)(2).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
5. Amend section 52.209-7 by--
0
a. Revising the date of the provision;
0
b. Adding to paragraph (a), in alphabetical order, the definition 
``Principal'';
0
c. Removing from paragraph (d) the word ``enter'' and adding the word 
``post'' in its place; and
0
d. Removing the undesignated paragraph that follows paragraph (d).
    The revised and added text reads as follows:

[[Page 4191]]

52.209-7  Information Regarding Responsibility Matters.

* * * * *

Information Regarding Responsibility Matters (JAN 2011)

    (a) * * *
    Principal means an officer, director, owner, partner, or a person 
having primary management or supervisory responsibilities within a 
business entity (e.g., general manager; plant manager; head of a 
division or business segment; and similar positions).
* * * * *


52.209-8  [Removed and reserved]

0
6. Remove and reserve section 52.209-8.
0
7. Add section 52.209-9 to read as follows:


52.209-9  Updates of Publicly Available Information Regarding 
Responsibility Matters.

    As prescribed at 9.104-7(c), insert the following clause:

Updates of Publicly Available Information Regarding Responsibility 
Matters (JAN 2011)

    (a) The Contractor shall update the information in the Federal 
Awardee Performance and Integrity Information System (FAPIIS) on a 
semi-annual basis, throughout the life of the contract, by posting 
the required information in the Central Contractor Registration 
database at http://www.ccr.gov.
    (b)(1) The Contractor will receive notification when the 
Government posts new information to the Contractor's record.
    (2) The Contractor will have an opportunity to post comments 
regarding information that has been posted by the Government. The 
comments will be retained as long as the associated information is 
retained, i.e., for a total period of 6 years. Contractor comments 
will remain a part of the record unless the Contractor revises them.
    (3)(i) Public requests for system information posted prior to 
April 15, 2011, will be handled under Freedom of Information Act 
procedures, including, where appropriate, procedures promulgated 
under E.O. 12600.
    (ii) As required by section 3010 of Public Law 111-212, all 
information posted in FAPIIS on or after April 15, 2011, except past 
performance reviews, will be publicly available.


(End of clause)

    Alternate I (JAN 2011). As prescribed in 9.104-7(c)(2), 
redesignate paragraph (a) of the basic clause as paragraph (a)(1) 
and add the following paragraph (a)(2):
    (2) At the first semi-annual update on or after April 15, 2011, 
the Contractor shall post again any required information that the 
Contractor posted prior to April 15, 2011.

[FR Doc. 2011-1323 Filed 1-21-11; 8:45 am]
BILLING CODE 6820-EP-P